Transcript of Judgement

Global Research has, from the outset, been involved in the Kuala Lumpur initiative to criminalise war launched by former Prime Minister Tun Dr. Mahathir Mohamad in December 2005.

The following judgement of the KL War Crimes Tribunal is the result of several years of work involving the collection of evidence and the hearing of witnessses.

This is historical decision which sends a clear message to acting heads of State and heads of government of the member States of the Atlantic Alliance.

It points to the criminality of the preemptive war doctrine. A war of aggression under a humanitarian pretext is a Crime against the Peace under international law.

“The doctrine of pre-emptive strikes ‘is a doctrine without limits, without accountability to the UN or international law, without any dependence on a collective judgment of responsible governments and, what is worse, without any convincing demonstration of practical necessity’. It repudiates the core idea of the UN Charter that prohibits the use of force except for self-defense or pursuant to a decision of the Security Council.”

Among the recommendations of the Tribunal:

“The Commission must invoke the Nuremberg law to report Bush, Blair and their accomplices for crimes against peace, war crimes and crimes against humanity under Part VIof the Charter of the Nuremberg Tribunal.

Second, the Commission must file reports of genocide and crimes against humanity with the International Criminal Court (ICC).

Third, the General Assembly of the United Nations must be approached to pass a resolution to end the American occupation of Iraq.

Fourth, the findings of this Tribunal must be communicated to all countries that have acceded to the Rome Statute and are possessed of universal jurisdiction.

Fifth, the UN Security Council must reassert itself and ensure that true sovereignty is transferred to the Iraqi people as soon as possible with the assistance of a UN PeacekeepingForce. The autonomy of the newly installed Iraqi government must be ensured.”

Michel Chossudovsky, Member of the Kuala Lumpur War Crimes Commission, Director of Global Research

The two accused, George W Bush and Anthony L. Blair, at the material times the Heads ofGovernment of the United States of America and the United Kingdom respectively, have been chargedby the Chief Prosecutor of the Kuala Lumpur War Crimes Commission with having committedCRIMES AGAINST PEACE, in that they have planned, prepared and invaded the sovereign state ofIraq on 19 March 2003 in violation of the United Nations Charter and international law. TheParticulars of the Charge state, inter alia, that on 19 March 2003, the two accused launched a waragainst Iraq without the sanction of the United Nations and without just cause whatsoever.

The two accused were not present at the proceedings though duly served. Nor were any attorneys orcounsel present in their behalf. Pursuant to Article 15 of the Charter of the Kuala Lumpur War CrimesCommission & the Rulesof Procedure and Evidence of the Kuala Lumpur War Crimes Tribunal(hereinafter referred to as “the Charter”), an Amicus Curiae was appointed by the Tribunal to assist theTribunal by presenting an unbiased assessment of the charge and evidence against the accused.

The Amicus Curiae entered a plea of not guilty on behalf of both the accused.

1. Recusal of Judges

At the commencement of the proceedings, the Tribunal had a full bench of 7 Judges. However, JudgeProf Niloufer Bhagwat and Judge Dato‟ Dr Zakaria Yatim later recused themselves, and the Tribunalproceeded to hear the case with a quorum of 5 Judges.

2. Preliminary Objection on Jurisdiction

Amicus Curiae Jason Kay Kit Leong raised a preliminary objection that the Tribunal has nojurisdiction to hear the case. After listening to arguments by the Chief Prosecutor and the AmicusCuriae, the Tribunal ruled that it has jurisdiction and the proceedings then continued.Under Article 7 of Part I of the Charter, the Tribunal shall have jurisdiction not only in respect ofcrimes against peace, but also in respect of crimes against humanity, crime of genocide and warcrimes.

3. Facts

It is the undisputed facts of the case that the first accused had contemplated invading Iraq as far backas 15 September 2001 and had confided in the second accused of this intention. In 2002, the twoaccused, without the sanction of the United Nations Security Council, had directed air strikes againstIraq in order to degrade Iraq‟s air defences, in preparation for its invasion in 2003. A memorandum ofthe UK cabinet dated July 23, 2002 (known as the “Downing Street Memo”) had recorded a meetingbetween the second accused and his intelligence officials.

On November 8, 2002, the United Nations Security Council passed Resolution 1441. The text of thisResolution clearly does not authorise the use of military action to compel its compliance. Both theaccused would have been fully aware of the limitations of this Resolution.

The second accused had admitted whilst giving his testimony at the Chilcot Inquiry on 14 January2011 that his Attorney General, Peter Goldsmith, had advised that a second Security CouncilResolution is necessary under international law to authorise the use of military force against Iraq.It is also an established fact that Iraq did not possess any weapons of mass destruction (WMD). Thetwo accused had over the years since the Iraq war admitted that they knew or believed the intelligencereports on Iraq‟s WMD to be unreliable. Yet both accused proceeded to wage war on Iraq based on afalse and contrived basis.

More than 1.4 million Iraqis have been killed (and continue to die) as a direct and indirectconsequence of the war waged by both accused against Iraq.

4. THE INTERNATIONAL LAW OF WAR –

4.1 General Prohibition Against Force

The Charter of the United Nations contains a general prohibition against force as a means ofresolving disputes. The Charter insists that war can only be a last resort and that the decisionto unleash the horrors of war on innocent populations can only be taken according to the dulyestablished law itself. The Security Council and the General Assembly have consistentlyaffirmed this principle.

4.2 Where in Exceptional Circumstances Force is Allowed

Under the Charter as well as customary international law, there are some exceptions that makethe use of force lawful.

First, legitimate self-defense under Article 51 of the Charter.

Second, specific Security Council authorization of force as a last resort to maintain peace andsecurity under Chapter VII of the Charter.

Third, the Defence assertion that in customary international law there is a principle of preemptiveor anticipatory self-defense when a threat of attack is imminent.

Fourth, the Defence assertion that there is a principle of humanitarian intervention or a Rightto Protect”.

5. WAS THERE A PRIMA FACIE CASE?

At the close of the case for the prosecution, we listened to submissions by both sides. TheTribunal came to the unanimous conclusion that a prima facie case exists. Defence was,therefore, called.

6. THE CASE FOR THE DEFENCE

6.1. Nicaragua case –

The amicus curiae Jason Kay Kit Leon states that the prosecution has submitted twocontradicting points on humanitarian catastrophe. The defence states, “The rule of naturaljustice requires the accused to know the charges against him clearly, to understand thenature of the charges against him, so that he has a chance to defend himself.‟‟

Yet, the defence in objecting to the prosecution‟s submission of the Nicaragua case hasmade a moot point. Both of prosecution counsels‟ interpretations of the Nicaragua casewould prohibit Bush and Blair‟s orders to wage aggressive war and invade Iraq.

The Nicaragua case, by the interpretation of prosecution lead counsel Gurdial Singh Nijar,prohibits the invasion of Iraq by Bush and Blair because that invasion was not infurtherance of “preventing an overwhelming humanitarian catastrophe for which Saddamcould be held responsible.” No such catastrophe had been established in Iraq through welldocumented evidence. There were many other means – including a second Resolution atthe United Nations – available to prevent the use of force. The measures taken by Bushand Blair‟s aggressive war against Iraq were disproportionate.

The Nicaragua case, by the interpretation of prosecution co-counsel Prof. Frances Boyle,places an absolute bar upon any intervention by force for humanitarian reasons.

6.2. Responsibility to Protect

Similarly defence argues that responsibility to protect is a doctrine that justifies anintervention by force on humanitarian grounds, and that the doctrine of responsibility toprotect provides a legal rationale for the aggressive war by Bush and Blair against Iraq.Defense cites the 1999 NATO intervention in Serbia as precedent. Yet as prosecution cocounselFrances Boyle noted, U.S. President Bill Clinton had no authority from the U.S.

Congress to invade Serbia and the UN resolutions cited by the defence were after the factof the illegal invasion by way of an attempt by the UN to control a U.S. President. The1999 invasion of Serbia was illegal under the Nicaragua case as was the 2003 invasion ofIraq by the two accused.

6.3. Use of U.S. government documents and statements of the accused

In arguing that the situation in Iraq justified Humanitarian intervention, the defence hassubmitted official documents predominately from one agency of the U.S. government, theU.S. Agency for International Development. These documents are biased presentationsand unreliable, as they are prepared subsequent to the invasion for purposes of justifyingthe invasion of Iraq. Moreover, as the prosecution demonstrated, the director of USAIDhimself admitted his agency was filled with U.S. under-cover intelligence agents andpropagandists.

6.4. 9/11 & the invasion of Iraq

The defence has interjected the events of September 11, 2001 into these proceedings in anumber of ways.

A. 9/11 & the invasion of Iraq –The defence has introduced no evidence that establishes aplanning or operational connection between Saddam Hussein and 9/11 event. Theprosecution established that Bush may have used 9/11 as a pretext for the invasion of Iraq.9/11 & the Project for A New American Century – The prosecution introduced evidencedemonstrating that key principals in the cabinet of the first accused Bush were planning aninvasion of Iraq as early as February, 1998 under the umbrella of the Project for a NewAmerican Century which at the same time was preparing public opinion for „‟a new PearlHarbor‟‟, an event that materialized on 9/11.

B. 9/11 „‟Grotian moment‟‟ – The defence cites authority contending that „‟September 11attacks on the United States demonstrate a change in the nature of the threats confrontingthe international community, thereby paving the way for rapid development of new rulesof customary international law‟‟ that would presumably authorize the invasion of Iraq.Yet it is still unsettled, what the events of September 11, 2001 are all about.

6.5 Saddam Hussein & acts of 1988-1991

The defence introduced evidence of Saddam Hussein‟s ethnic cleansing and chemicalweapons use against the Kurds and the Anfal campaign in 1988, as well as the killing ofShiites and Marsh Arabs in 1991. Yet the defence failed to explain why U.S. PresidentRonald Reagan and George HW Bush (Senior) through agent Donald H. Rumsfeld soldIraq chemical weapons and permitted their use and why President George HW Bush(Senior) incited the Marsh Arabs to revolt in 1991 only to abandon them knowing theywould face Iraqi government reprisals.

6.6. United States Joint Forces Command

The defence introduced a document prepared by the Joint Center for Operation Analysesunder official contract with the U.S. Department of Defense as justification forrelationships between Saddam Hussein and international terrorism. The prosecutionestablished the bias of this document as that produced by the invading party after theinvasion.

6.7. Anticipatory self-defence

The defence raised the doctrine of anticipatory self-defence under Article 51 of the UNCharter as a justification for the invasion of Iraq by the two accused Bush and Blair. Theprosecution noted that the clause „‟if an armed attack occurs‟‟ in Article 51 precludes itsapplication to the case of Iraq. The prosecution also noted that the 1981 attack by Israelon Iraq, cited by counsel for the defence as a justification for the invasion of Iraq by theaccused, was condemned by the UN Security Counsel and had been ordered by IsraeliPrime Minister Begin to improve his standing in the election polls in Israel in 1981.

6.8. Memoirs of the accused Bush and Blair

Both the defence and the prosecution introduced relevant segments of the Memoirs of theaccused Bush and Blair as evidence in this case.

7. TRIBUNAL’S FINDINGS ON FACTS AND LAW

7.1 Right of Self-Defense Under the UN Charter

Article 51 of the UN Charter permits member states to defend their sovereignty and toexercise the “inherent right of individual or collective self-defense if an armed attack occurs”.

However, the unilateral use of retaliatory force is subject to a number of limitations.

First, the right persists only till “the Security Council has taken measures necessary tomaintain peace and security”. Once the Council formally determines that there exists a threatto international peace and security, individual states may no longer exercise the right of selfdefensewithout the Council‟s express prior approval.

Sometime after the Allied invasion, the Security Council deliberated on the Iraq war. It didnot expressly validate the invasion. Yet we all know that the military occupation of Iraq bythe Allies continues till today.

Second, Article 51 applies only in the event of an actual armed attack. Iraq had not attackedthe USA or the UK. In fact, since 1991, it had not attacked any country whatsoever.Despite Defence submissions, there is no credible evidence that Iraq had any connections withSeptember 11, 2001 or with Al-Qaeda. Nor is there any evidence of Iraqi preparation toinvade or attack or threaten any nation.

If by some stretch of imagination, there was such a threat, it was not imminent and it wasentirely avoidable. The argument about self-defense is, therefore, not credible.

Third, the International Court of Justice has affirmed in the Nuclear Weapons Case thatlawful defense must be both “proportional to the armed attack and necessary to respond to it”.[Nicaragua, ICJ Reports (1986) at 14, 94 and 103; Legality of the Threat Or Use of NuclearWeapons, ICJ Reports (1996) at para. 41].

As there was no armed attack from Iraq, there was, therefore, no justification for the US orUK to invoke the Article 51 doctrine of self-defense to attack, invade and conquer Iraq. Thejustification, if any, must lie in the Defence Counsel‟s disputed doctrine of anticipatory orpreemptive self-defense under customary international law which we shall deal with below.

7.2 Security Council Authorization

Except for the narrow exception of unilateral self-defense under Article 51, the SecurityCouncil of the United Nations is the only authority empowered by Chapter VII, Articles 39 to42 to use force by air, sea or land against a nation that is guilty of a “threat to the peace,breach of the peace, or act of aggression”. This exceptional power is subject to a number oflimitations.

First, military action is permitted for maintaining or restoring international peace and security.However, on the basis of the Nicaragua decision, regime change is not a valid internationallaw objective. We are of the firm view that the exceptional powers of Chapter VII cannot beemployed to declare war and resort to military action against a sovereign nation solely for thepurpose of “regime change” or the removal of a dictatorial or unelected leader, no matter howunlikable he may be.

Second, military action under Article 42 must be resorted to as a matter of last resort. TheCouncil must first attempt peaceful measures like sanctions under Article 41 of the Charter.Article 41 authorises “complete or partial interruption of economic relations and of rail, sea,air, postal, telegraphic, radio, and other means of communication, and the severance ofdiplomatic relations”.

Force can be authorized only after the Council determines that peaceful measures “would beinadequate or have proved to be inadequate” (Article 42). The Council has an obligation toexhaust all peaceful avenues before authorizing war (Article 39).

Except for the USA and the UK, the other permanent members of the Security Council wereof the view that UN inspections were working and that Iraq was complying with the order todisarm. On the orders of the UN inspectors the Saddam regime had destroyed someproscribed weapons. Hans Blix, chief United Nations weapons inspector requested fourmonths to complete his job and the majority of the members of the Council seemed agreeableto granting this time. But the US and the UK were not supportive of any extension of time.

They lobbied hard to obtain a new Council Resolution to authorize immediate militaryoperations against Iraq. The US forged documents to accuse Iraq of trying to purchase rawmaterials for WMD on the international market. The UK, on its part, lacking any substantialevidence against Iraq, plagiarized from a student thesis and tried to pass off an out-of-datestudent essay as an authoritative intelligence report!

US and UK attempts to force a new resolution ultimately failed France, Germany, Russia andChina wished to give to the inspectors the time they requested to complete their inspections.Having failed to push a resolution through the Security Council, the US and the UK changedtheir tune and argued that no new resolution was needed to authorize military strikes as earlierresolutions were sufficient to allow any Council member to unilaterally use force in the eventthat Iraq was in material breach of its obligations.

This is the “revival argument” put forward by the Defence. Examination of some of theUNSC resolutions on Iraq between 2 August 1990 and 8 November 2002 will show that theUS-UK argument of unilateral authority to invade Iraq suffers from several fatal flaws.7.3 Pre-emptive or Anticipatory Self-defense in Customary International Law

The UN Charter nowhere permits the declaration of war on a perceived threat of imminentattack. Some scholars argue that the Charter intended to abolish the pre-Charter customaryright of pre-emptive self-defense. Despite this doubt it does appear that under customaryinternational law the doctrine of pre-emptive self-defense does exist. “According to theseminal Caroline case the legitimate exercise of this right requires “a necessity of selfdefense,instant, overwhelming, leaving no choice of means, and no moment for deliberation”.

The idea that the security of US & UK was threatened by Iraq‟s alleged possession ofweapons of mass destruction (WMD) was preposterous and is even more so today. Despiteyears of extremely intrusive intelligence gathering from the air and more than 550 inspectionson the ground by UN inspectors in the last four months before the invasion, no credibleevidence of WMD had surfaced. Some US documents alleging Iraq‟s attempt to purchaseproscribed weapons turned out to be crude forgeries. The UN Inspectors found no suchweapons nor any long-range delivery system.

In these circumstances, the assertion by the Defence of a right to engage in unilateral and“pre-emptive attacks” on Iraq was a blatant violation of international law. Their argumentsought to give to powerful states the right to use military force against other states that areseen as hostile or that make moves to acquire weapons of mass destruction whether nuclear,biological or chemical.

It is our view that the doctrine of pre-emptive strikes “is a doctrine without limits, withoutaccountability to the UN or international law, without any dependence on a collectivejudgment of responsible governments and, what is worse, without any convincingdemonstration of practical necessity”. It repudiates the core idea of the UN Charter thatprohibits the use of force except for self-defense or pursuant to a decision of the SecurityCouncil.

7.4 Humanitarian Intervention or the Right to Protect Victims of Human RightsAbuses

The Defence gave convincing evidence of serious human rights violations by SaddamHussain. However, they adroitly avoided admitting that both the US and UK were complicitin most of these offence.

In the light of Saddam‟s brutal record, the Defence argued that the international communityhas the right and the duty to use military force for humanitarian purposes and for redressinggross abuses of human rights. As there was credible evidence that the unelected Saddamregime was guilty of serious human rights breaches, it was argued that military force could beused to bring about a regime change in Iraq.

We acknowledge that international law is not static. Eloquent arguments by the Defence of“Grotiun moments” in international law are taken note of. However, growth and change haveto be within the four corners of the UN Charter and not outside it.

The danger of the `humanitarian intervention‟ argument is that it enables member states tocircumvent well-established principles and procedures of the UN Charter on use of legitimateforce. Decision-making on issues of peace and war is unlawfully transferred from multilateralUN mechanisms to individual states. Relying on this argument member states may transgresslegal limits on use of this exceptional power and not be accountable to anyone. There is nosafeguard to prevent states from manipulating this argument to serve narrow political orstrategic interests.

It must also be remembered that the UN is already empowered, under Chapter VII, to respondwith force if necessary to uphold the UN‟s fundamental purposes, which, in Article 1 include“encouraging respect for human rights and fundamental freedoms”.

We hold that when a country takes it upon itself to displace by force of arms a government oradministration that it disapproves of, this is naked aggression and an international crime.Despite some scholarly dispute which we recognize,we hold that the principle of humanitarianintervention has dubious basis. International vigilantism has no legal validity. Even if it did, it should be applied subject to the preconditions outlined by the Prosecution. None of theconditions were satisfied in this tragic situation.

7.5 Possession of WMD

An attack on Iraq because of its alleged possession of weapons of mass destruction (WMD)had no legitimacy in international law. First of all, claims regarding Iraq‟s pursuit or actualpossession of weapons of mass destruction (WMD) were always highly suspect.

Secondly, enforcement of UN resolutions against Iraq‟s alleged possession of WMD shouldhave been undertaken in accordance with international law and not in blatant disregard of it.Thirdly, the US lacked clean hands on the issue of Iraq‟s possession of WMD because alongwith Britain and 150 or so Western companies (listed in Iraq‟s Report to the UN Inspectors),the US facilitated Iraq‟s acquisition and use of WMD in the 1980s

7.6 Was there pre-planning and preparation to mount the military operation?

The Prosecution has given us convincing evidence that the drums of war were being beatenlong before the invasion. Facts were fixed to support the policy.

Regrettably the Defence rebuttal was based on highly dubious US Government or US Militaryevidence that is not credible. US laws or Congressional Resolutions are also not acceptable asthe US, with all its might has no right to change international law.

Further many statements in the books authored by the two accused implicate them in thediabolical plan. The memoirs of the two accused do not provide justification for the war ofaggression against Iraq.

8. VERDICT

“The essence of legality is the principled, predictable, and consistent application of a singlestandard for the strong and the weak alike. Selective manipulation of international law bypowerful states undermines its legitimacy.”

The 2003 invasion of Iraq was an unlawful act of aggression and an international crime. It“cannot be justified under any reasonable interpretation of international law”. It violates “theouter limits of laws regulating the use of force”. It amounts to mass murder. Unlawful use offorce in Iraq “threatens to return us to a world in which the law of the jungle prevails over therule of law, with potentially disastrous consequences for the human rights not only of theIraqis but of people throughout the region and the world”.

The future of the UN and of the international law of war is also at stake. The unauthorizedmilitary action in Iraq undermines the system of collective security embedded in the UNCharter in order to protect humanity from a recurrence of the carnage of World War II.The two accused took the law into their own hands. They acted with deceit and withfalsehood. They acted in flagrant violation of international law of war and peace. In theabsence of any convincing evidence, defence assertions lack credibility. They appear to befig leaves for hiding naked economic and political ambitions.

We therefore find that the charge against the two accused is proved beyond reasonable doubt.The two accused are, therefore, found guilty as charged and the two accused are accordinglyconvicted on the charge.

9. ORDERS

1. The Tribunal in accordance with Article 31 of our Charter, recommends to theCommission to file reports with the International Criminal Court against the twoaccused.

2. The Tribunal in accordance with Article 32 recommends to the Commission that thename of the two convicted criminals be included in the Commission‟s Register of WarCriminals and publicized accordingly.

10. RECOMMENDATIONS

First, the Commission must invoke the Nuremberg law to report Bush, Blair and theiraccomplices for crimes against peace, war crimes and crimes against humanity under Part VIof the Charter of the Nuremberg Tribunal.

Second, the Commission must file reports of genocide and crimes against humanity with theInternational Criminal Court (ICC).

Third, the General Assembly of the United Nations must be approached to pass a resolution toend the American occupation of Iraq.

Fourth, the findings of this Tribunal must be communicated to all countries that have accededto the Rome Statute and are possessed of universal jurisdiction.

Fifth, the UN Security Council must reassert itself and ensure that true sovereignty istransferred to the Iraqi people as soon as possible with the assistance of a UN PeacekeepingForce. The autonomy of the newly installed Iraqi government must be ensured.

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